On September 19, 2010, the New York Times published an article titled “When Mortgage Mediation Is a Gamble” by Gretchen Morgenson. In it, she described some of the pitfalls of Nevada’s foreclosure mediation program. Most of the time we think of mediation as a low-risk endeavor: there isn’t much to lose in a process where you control your own destiny and carefully weigh for yourself whether or not to enter into an agreement.
Last time, I wrote about the effect on a party when the opposing party comes unprepared to a mediation.
The second problem with the program affects the mediators as well as the parties. Three mediators described what happened to them when they suggested to program administrators that the lenders who came unprepared be subject to some sanctions under the program’s own rules. In each case, the mediator received no more assignments from the program. In any program — mediation or otherwise — punishing those who are trying to ensure that one side follows the rules has a chilling effect. Mediators won’t alert the program administrators that lenders aren’t playing by the rules and lenders will have even less reason to participate in good faith.